Brown Resurrects Civility in Litigation

Gov. Jerry Brown has resurrected an expired law, Cal. Code of Civil Procedure section 128.5. This is a positive development for ethical lawyers and their clients, who find themselves dealing with bad-faith litigation tactics coming from another other party or attorney, but without a meaningful way to combat it. This law restores trial courts’ authority to award sanctions, including attorney’s fees, to a party if the other side engages in bad-faith tactics in litigation.

An almost identical version of Cal. Code of Civil Procedure section 128.5 had been in effect until December 31, 1994, but expired in 1995, leaving only its companion, Cal. Code of Civil Procedure section 128.7, in effect. That “watered down” statute was narrower, allowing sanctions for filing meritless and frivolous complaints, motions, or other pleadings, but not for other bad faith litigation tactics and conduct. Now, lawyers and parties will once again be subject to sanctions for conduct that is “totally and completely without merit” or done “for the sole purpose of harassing an opposing party.” Cal. Code of Civil Procedure section 128.7 will also remain effective.

“Prior to this bill, courts had tools to sanction lawyers who brought frivolous lawsuits but not sanctions if they behaved badly,” said Kim Stone, president of the Civil Justice Association of California. “Now, if the filing is legit, but the lawyer is behaving like a jerk, the court can smack them with the other side’s legal fees.”

The new law is in effect from January 1, 2015 until January 1, 2018, when the California Research Bureau will determine if the law was a demonstrable deterrent on bad-faith litigation conduct.